AWUZIE & ORS v. OHANWE & ORS (2020)

AWUZIE & ORS v. OHANWE & ORS

(2020)LCN/14076(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Tuesday, March 10, 2020

CA/OW/501/2017

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

1. PRIEST IHEANACHO OBIESI AWUZIE (For Himself And On Behalf Of Ihim Town Union Called Umuihim Development Union) 2. CHIEF RAYMOND OSUJI 3. CHIEF CHUKWUMEREIJE V. UCHEGBU NZE CYPRIAN ANYIAM (He Is Stated As The 4th Claimant In The Ruling Of The Trial Court Though Reported Dead To The Trial Court; His Name Was Not Struck Out By The Trial Court) APPELANT(S)

And

1. CHIEF OLIVER OHANWE 2. GOVERNOR OF IMO STATE 3. ATTORNEY-GENERAL OF IMO STATE 4. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS, IMO STATE RESPONDENT(S)

RATIO

TEST TO DETERMINE WHETHER OR NOT A PERSON HAS “LOCUS STANDI”

There are principally two acid tests in determining whether or not a person has “Locus standi” to initiate an action. These are:
(a) The action must be justifiable; and
(b) There must be a dispute between the contending parties.
The above is the view of the Courts in a long line of cases.
I refer in particular to the cases.
(1) …
(2) …
(3) Guda vs. Kitta (1999) 12 NWLR (pt. 629) p. 21 per Omoleye, JCA in Bewaji vs. Obasanjo & Ors (2007) LPELR – 4266 (F. 23 paragraphs a – c)
My Lord Omoleye, J.C.A., the Judge is expected to examine the statement of claim meticulously to see if it discloses a cause of action vested in the claimant. The affidavit in this case as in The Bewaji case (supra) must disclose in clear terms the rights and obligations or interest of the claimant. See paragraph D-F, p. 23 of the Bewaji case.
According to the Supreme Court in Odeneye V. Efunuga (1990) LPELR – 2208 SC,
“Accordingly, Locus standi will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected”. Per Karibi-Whyte, JSC (p.13 paragraph C.) in the Odeneye case(supra). PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT APPEALS ATRE ARGUED ON GROUNDS OF APPEAL

I am of the considered view, that it is settled law, that appeals are not argued on grounds of appeal but on “issues formulated from the grounds of appeal”. This is why the law has also recognised the fact that a proper issue for the determination of an appeal, is not every slip committed by the Judge whose judgment is appealed from. Rather, for purposes of an appeal, it is a proposition of law or of fact so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court. See the cases of CONSORTIUM M.C. (NIG) V. NEPA (1992) LPELR-893(SC); and UGO V. OBIEKWE (1989) NWLR (Pt. 99) 566, amongst many others. PER LOKULO-SODIPE, J.C.A.

CHALLENGES AS TO “LOCUS STANDI”

The settled position of the law is that any challenge as to “locus standi”, lack of cause of action, and that an action is statute barred; being threshold issues, is to be basically determined from the averments in the statement of claim, and reliefs being claimed in the action. In this regard, see amongst many others, the following cases: (i) THOMAS V. OLUFOSOYE (1986) LPELR-3237 (SC); (ii) SPDC NIG. LTD V. X.M. FED. LTD (2006) LPELR-3047 (SC); (iii) AJAYI V. ADEBIYI (2012) LPELR-7811 (SC); (iv) YARE V. NATIONAL SALARIES, WAGES & INCOME COMMISSION (2013) LPELR-20520 (SC); and (v) BARBUS & CO. (NIG) LTD V. OKAFOR-UDEJI (2018) LPELR-44501(SC). PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT THE COURT MUST ENTERTAIN ALL PENDING APPLICATIONS IN A MATTER BEFORE FINAL DETERMINATION

The position of the law that a Court must entertain and determine all pending applications in a matter, before it disposes of the same to finality, has been enunciated in a host of cases. One of such cases, is that of AKPAN V. BOB (2010) LPELR-376(SC) wherein the Supreme Court, while restating the principle of law in question, made it clear that it was for the party that filed an application or motion or process that a Court is alleged not to have entertained and determined before it disposed of a case to finality, to bring the existence of the said motion or any such other process, to the notice of the Court in question. In the case under reference and upon which I am of the considered view that the issue under consideration can be conveniently determined, the Supreme Court said this much per Ibrahim Tanko Muhammad, JSC; (as he then was) in these words: –
“The trite position of the law is that where there are pending processes before a Court, such as motions or other applications, such issues have to be dispensed with before a final decision is taken on the main action or appeal. See: Irolo v. Uka …PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT OBJECTION TO JURISDICTION MUST BE TAKEN FIRST

This is because the settled position of the law at least as it relates to ordinary civil proceedings (in contradistinction to proceedings to which the Administration of Criminal Justice Act applies as well as election petitions), is that the objection on jurisdiction must be taken first. See in this regard amongst many others the case of NTUKS V. NPA (2007) LPELR-2076 (SC) wherein the Supreme Court stated thus: –
“It is elementary law that where a party raises an objection on jurisdiction, the Court must take the objection first and that is what the learned trial Judge did in her ruling of 7th December, 2001. I cannot fault the learned trial Judge.” See also the case of NANLE V. FRN (2018) LPELR-44457(CA). PER LOKULO-SODIPE, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: (Delivering the Leading Judgment): The appeal is against the ruling delivered on 6/2/2017, by the High Court of Imo State presided over by Hon. Justice E.O. Agada (hereafter to be simply referred to as “the lower Court” and “learned trial Judge” respectively).

The instant case was instituted by a writ of summons that issued on 28/9/2012. Four named claimants were set out in the writ of summons and the 32-paragraph statement of claim filed in the action. The reliefs sought in the action as set out under paragraph 32 of the statement of claim filed on 28/9/2012, read: –
“32. The claimants aver that all actions taken under or pursuant to the said Ihim Autonomous Community Constitution made on 10th February 2011 do not bind them and will never be accepted by them.
Wherefore the Claimants claim the following reliefs:
1. A declaration that the document entitled Ihim Autonomous Community Constitution on the Identification, Selection, Installation and Presentation of a Traditional Ruler/Eze made on 10th February 2011 and deposited by person(s) unknown with the Imo State Government

through the 4th Defendant’s Ministry as the Constitution of Ihim Autonomous Community is illegal, unlawful, null and void, and of no effect whatsoever and therefore not binding on the people of Ihim Autonomous Community for whatever purpose having been made without the knowledge, participation and approval of the people of Ihim Autonomous Community.
2. A declaration that the people of Ihim Autonomous Community, as a people, are entitled to make by themselves their town union Constitution, including issues of the identification, selection, presentation and installation of the traditional ruler (i.e. Eze) of the Autonomous Community, and that a Constitution made on behalf of the Autonomous Community by any individual or few persons, without the people’s consent, participation, inputs and approval is illegal and unlawful and cannot be received, used, referred to, known as and or called Ihim Autonomous Community Constitution for all intents and purposes.
3. A perpetual injunction restraining the Defendants by themselves, their servants, officers, successors, representatives, agents or whatever name called from referring to, acting on, upholding and or

utilizing the document entitled Ihim Autonomous Community Constitution on the Identification, Selection, Installation and Presentation of a Traditional Ruler/Eze as the constitution of Ihim Autonomous Community, Isiala Mbano Local Government Area for whatever purpose or circumstance.”

The writ of summons and the statement of claim were duly served on the 1st Respondent (hereafter to be simply referred to as “the Respondent”) and the 2nd – 4th Respondents (hereafter to be simply referred to as “the Respondents”) respectively. The Respondent and Respondents respectively, filed motions before the lower Court to regularise the positions of their statements of defence in the case. On 26/5/2014, the Appellants filed a motion seeking for orders: –
“1(i) amending the 1st Defendant’s name to add his title thus: HRH Eze Oliver Ohanwe in the writ of summons, statement of claim and other accompanying processes in the instant suit.
(ii) amending the claimants’ first relief by deleting the words person(s) unknown and replacing same with the 1st Defendant and his cohorts.
(iii) amending the 4th

Defendant’s name by deleting local and replacing it with Community Government and Chieftaincy Affairs. (See what is reflected in the proposed amended writ of summons on page 76 of the records of appeal).
2. An order deeming the amended writ of summons and all other processes or documents attached as properly filed and served, filing fees having been paid.”

The motion referred to above, was filed after the proceedings before the lower Court on 12/3/2014 (see page 71(a) of the records of appeal) whereat the said Court stated: –
“Court: It is ordered, in view of what the Court has been told, that the 1st Defendant without prejudice to this suit in the meantime is an Eze and should be addresses as such. The processes herein are accordingly to be amended.
At this juncture, counsel appeared for the claimants. C.O. Iwunna (Mrs.) now appears for the claimants (sic).
Court: Case is adjourned to enable papers to be properly filed and the matter then fixed for pre-trial conference.”

On 29/10/2014, the Respondent filed a motion on notice seeking for orders: (i) dismissing this suit with costs for being incompetent; and

(ii) dismissing this suit with costs for being statute barred. The grounds of the motion are: –
“The Claimants lack the locus standi to institute this suit and this has rendered the suit incompetent hence liable to be dismissed.
The action is statute barred and discloses no cause of action against the defendants.
The claimants have no right of action against the defendants.
This Honourable Court lacks jurisdiction to entertain this case.”

The Respondents on their part, filed a motion on notice on 19/6/2015. The motion on notice included a notice of preliminary objection praying for orders (i) “dismissing this suit for want of jurisdiction and an abuse of Court process”; and (ii) dismissing the suit for being statute barred. The grounds of objection are: –
“1. The action is statue barred.
2. There is no cause of action against the 2nd, 3rd and 4th defendants in this suit.
3. The Honourable Court lack’s (sic) jurisdiction to entertain this case.”

In the notes of proceedings headed 24/6/2015, but signed as 24/6/14, (see page 361 of the records of appeal), it is stated:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Court: At the behest of Mr. Chukmeizie and to allow proper responses to processes filed in the case. (sic) Case is adjourned to 21/7/15 for adoption of arguments in the motion on jurisdiction.”

What transpired before the lower Court in respect of “the motion on jurisdiction” which it adjourned till 21/7/2015, on 24/6/14 (sic) is captured in the notes of proceedings for 22/11/2016. Therein, it is shown amongst others that:-
(i) U.N. Durueke with N.O. Chukwuezi appeared for the claimants/respondents;
(ii) That parties are present except the 4th claimant (who is reported dead) and 2nd – 4th Defendants (now Respondents); and
(iii) That the motions challenging the jurisdiction of the lower Court to entertain the instant case as separately brought by the Respondent and Respondents respectively were consolidated for hearing upon the application of learned lead counsel for the claimants/respondents.

Suffice it to say that after the lower Court had entertained the motions in question challenging its jurisdiction, the matter was adjourned till 20/12/2016, for ruling. The lower Court however delivered its ruling

on 6/2/2017. In its ruling, the lower Court having averted its mind to the affidavits placed before it by the parties; their respective written addresses; also set out the issues formulated for the determination of the motions brought by the Respondent and Respondents respectively, as well as those formulated by the Appellants. The lower Court however formulated the 3 issues calling for the determination of the question as to whether or not it has the requisite jurisdiction to entertain and determine the Appellants’ suit, as: –
“1. Whether the claimants have the locus standi to institute this suit.
2. Whether this suit is statute barred.
3. Whether there is a cause of action against the Defendants or any of them.”

In resolving the issues it formulated; and against the backdrop of the common position of the Respondent and Respondents respectively (and which is to the effect that the issues be answered in the affirmative); and the contrary position of the Appellants, and having set out the claims of the Appellants as contained in paragraph 32 of the statement of claim, the lower Court proceeded thus: –

“May I take the privilege of considering issue 2 first and then to consider issues 1 and 3 together.
ISSUE 2
This issue deals with whether this suit is statute barred. Mr. Williams for the 1st Defendant, in contending that this action is statute barred hinged his argument on Section 28 of Law No. 6 of 2006 of Imo State of Nigeria which states that
“Where any interested party within the Autonomous community feels that in the exercise of such recognition an Eze, the rules of natural justice have been contravened, that (sic) may have within 21 days of the recognition, the right to apply to the High Court for review of the recognition and the Court may make any such order as it finds fit for peace, order and good government.”
Mr. Williams also refers me to Section 2(a) of Public Officers Protection Act Cap P. 41 Laws of the Federal Republic of Nigeria, 2004.
It provides that:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law of any public duty or a authority, or in respect (sic: respect) of any alleged neglect or default in

the execution of any Act, Law, duty or authority the following provision shall be effect:
The action, prosecution or proceeding shall not be or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in the case of continuance of damage injury, within three months after leasing (sic) thereof.”
Mrs. V.U. lhezie for the 2nd – 4th Defendant also relied on the two statutory provisions relied upon and quoted by Mr. Williams on this action being statute barred.
Without much ado, I agree with Mr. Chukwuezi of Counsel to the claimants that Section 28 of Imo State of Nigeria Traditional Rules (sic) and autonomous (sic) Communities Law No. 6 of 2006 is applicable here. This is because the contest in this case does not turn upon Ezeship or Autonomous Communities contest. It is instead on the validity or otherwise of the alleged Constitution. Mr. Chukwuezi also argued that the Court must hear the case since allegations of criminality has (sic) been made. Mr. Durueke his principal reinforced this in their oral adumbration. However, I am unable to agree. Any allegation or contention can only be made

after crossing the threshold and I was unable to access that case of Prof. Uwazuruike vs. Nwachukwu (2012) 12 SC 9 pt (sic). 1) 200, 225. I agree (sic) Onoghen, JSC (as he then was) that allegations bordering (sic) on fraud/or forgery ought to be looked into by the Court. Ameddle some interloper, for instance, may not sue on it. Be that as it may, I hold that Section 28 of Imo State Law No.6 of 2006 has no application. As for the Public Officers Protection Act, Cap P. 41 Laws Federal Republic of Nigeria 2004, I hold that it applies for the protection of public officers such as 2nd to 4th defendants.
I therefore resolve issue 2 in favour of the 2nd to the 4th Defendants only but against the 1st Defendant.
ISSUE 1 AND 3:
The threshold issue of locus standi or ‘standing’ or ‘title to sue’ has been raised by both applications under consideration. According to, the Court of Appeal:
There are principally two acid tests in determining whether or not a person has “Locus standi” to initiate an action. These are:
(a) The action must be justifiable; and
(b) There must be a dispute between the contending parties.
The above is the view of

the Courts in a long line of cases.
I refer in particular to the cases.
(1) …
(2) …
(3) Guda vs. Kitta (1999) 12 NWLR (pt. 629) p. 21 per Omoleye, JCA in Bewaji vs. Obasanjo & Ors (2007) LPELR – 4266 (F. 23 paragraphs a – c)
My Lord Omoleye, J.C.A., the Judge is expected to examine the statement of claim meticulously to see if it discloses a cause of action vested in the claimant. The affidavit in this case as in The Bewaji case (supra) must disclose in clear terms the rights and obligations or interest of the claimant. See paragraph D-F, p. 23 of the Bewaji case.
According to the Supreme Court in Odeneye V. Efunuga (1990) LPELR – 2208 SC,
“Accordingly, Locus standi will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected”. Per Karibi-Whyte, JSC (p.13 paragraph C.) in the Odeneye case(supra).
What then are the averments in the Claimants’ Statement of Claim that touches on the title to sue and cause of action herein?
By their 32 paragraph Statement of Claim, the claimants’ interest is to the preparation

and giving unto themselves an Ihim autonomous (sic) Community Constitution by Ihim people. This is a general interest averment. But their interest ought to be elevated or go beyond that and ought not to be shared with other members of society.
According to My Lord Mohammed, J.S.C. in Ijelu & Ors vs. Lagos State (sic) Dev. & Property Corporation (1992) LPELR – 1468 (SC) ratio 4 at p.14 paragraphs D – F.
“There is a long line of authorities on the subject of locus standi or standing and the general principle is that for a person to have locus standi either to institute an action or to prosecute an appeal he has to show that he has a special interest; that the interest is not vague or intangible, supposed or speculative or that it is not an interest which he shares with other members of society. He also has to show that such interest has been adversely affected by the act or omission which he seeks to challenge”. (underlining mine)
What then is the special interest the claimants have in this Constitution or in making it or making it unto themselves. I see none and they have not averred any. This discounts their perceived standing in

bringing or prosecuting this case. They are robbed of the requisite locus standi. Again as a corollary, it follows that there is no cause of action manifested by the statement of claim.
Issues 1 and 3 therefore are resolved in favour of the Defendants/Applicants.
Having resolved issues 1 and 3 in favour of the Defendants/Applicants, and issue 1 in favour of the 2nd to 4th Defendants/Applicants. The preliminary objections succeed and this suit accordingly is dismissed. I make no other as to cost.”

Being aggrieved with the ruling of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the said Court on 5/5/2017, a notice of appeal dated 3/5/2017. The notice of appeal contains six grounds of appeal. The grounds of appeal shorn of their respective particulars read thus: –
“GROUNDS OF APPEAL
1. ERROR IN LAW
The trial Court erred in law when it held that Public Officers Protection Act, Cap P.41 Laws of the Federation of Nigeria, 2004 applied for the protection of the 2nd– 4th Defendants in the case and thereby occasioned a miscarriage of justice in the matter.

ERROR IN LAW
The trial Court erred in law when it held that the Claimant “are robbed of the requisite locus stand” to bring the suit and thereby occasioned a miscarriage of justice in the case.
3. ERROR IN LAW
The trial Court erred in law when it held that “there is no cause of action manifested by the statement of Claim” and thereby occasioned a miscarriage of justice in the matter.
4. ERROR IN LAW
The trial Court erred in law when it heard and determined the preliminary objection of the 1st Defendant for dismissal of the suit dated 26/09/2014 and that of the 2nd – 4th Defendants dated 17/06/2015 without first calling on the Claimants to move or argue their Motion on Notice for amendment of their Statement of Claim in the suit dated 06/05/2015 but filed 07/05/2015 or striking out the said motion on notice for amendment and thereby denied the Claimants their fundamental right to be heard in respect of the said Motion.
5. ERROR IN LAW
The trial Court erred in law when after it became aware of the demise of Nze Cyprian Anyiam, who was the 4th Claimant, it proceeded to hear and decide the preliminary

objection by the Defendants without first striking out from the suit the name of Nze Cyprian Anyiam and thereby heard a case against the dead alongside the living which affected its jurisdiction.
6. ERROR IN LAW
The trial Court erred in law when it dismissed the Claimant’s (sic) suit and thereby occasioned a miscarriage of justice in the matter.”

The reliefs the Appellants seek from this Court as set out in their notice of appeal are to the effect that this Court (i) should set aside the entire decision of the lower Court; and (ii) an order remitting the case back to the lower Court for it to be heard on the merit.

The appeal was entertained on 27/1/2020, with learned counsel Uche Wisdom A. Durueke, in urging the Court to allow the appeal, adopting and relying on the Appellants’ brief of argument dated 13/7/2018 and filed on 16/7/2018, as well as Appellants’ reply brief dated 30/8/2018 and filed on 3/9/2018.

In the same vein, learned counsel Alex N.N. Williams, in urging the Court to dismiss the appeal, adopted and relied on the brief of argument of the Respondent dated 13/8/2018 and filed on 16/8/2018.

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The Respondents though served with the following processes to wit: (i) Appellants’ brief of argument on 20/7/2018; (ii) Appellant’s reply brief on 14/9/2018; (iii) Respondent’s brief on 17/8/2018; and (iv) hearing notice in respect of the hearing date of the appeal, on 9/12/2019; did not file a brief of argument and were also not represented by counsel at the hearing of the appeal.

Paragraphs 1.01-1.22 of the Appellants’ brief of argument, was devoted to “Introduction”. In paragraph 1.07, the Appellants dwelled upon the order made by the lower Court on 12/3/2014, in the absence of their counsel that their processes be amended to change the status of the Respondent to read HRH Eze Oliver Ohanwe, despite the fact that he was sued in the names of Chief Oliver Ohanwe. The Appellants claimed that this order was made despite the averments in paragraphs 4 and 5 of the statement of claim that the said Respondent was deposed as a traditional ruler by the Imo State Government in 2007, and has not been reinstated. It is the stance of the Appellants that the lower Court did this without evidence placed before it, by the Respondent.

The Appellants also stated to the effect that to ensure that the instant suit went on, they filed a motion for the amendment of the statement of claim and all accompanying processes as directed by the lower Court. That though the said motion was withdrawn by a notice of withdrawal filed on 6/5/2015, a fresh motion for amendment was filed on 7/5/2015. That the Respondents herein without waiting for the motion on notice for amendment as directed by the lower Court to be heard and decided, started addressing the Respondent as HRH Eze (Dr.) Oliver Ohanwe. That the Respondents amended their processes without the leave of the lower Court with the result that the preliminary objections entertained by the lower Court in the instant suit, featured the names of parties as amended by the Respondents.

Having also given a “summary of relevant facts” in their brief of argument, the Appellants went on to formulate an issue for the determination of the appeal from each of the grounds of appeal set out in the notice of appeal. The issues read thus: –
1. Whether, in respect of the 2nd – 4th Defendants, the Plaintiffs’ action is statute barred under the

Public Officers Protection Act? (Ground 1)
2. Whether the trial Court was right when it held that the Plaintiffs are robbed of the requisite locus standi to sue? (Ground 2)
3. Whether the action by the Plaintiffs disclosed a cause of action to be heard by the trial Court? (Ground 3)
4. Whether the trial Court was right in law when it proceeded to hear the Preliminary Objections by the Defendants without first hearing and determining the pending Application of the Plaintiffs to amend their Statement of Claim? (Ground 4)
5. Whether the failure or refusal of the trial Court to strike out the name of the 4th Defendant who was reported dead and proceeding to deliver a ruling against the dead and the living together did not render the said ruling a nullity. (Ground 5)
6. Whether the trial Court was right in dismissing the suit? (Ground 6)”

The Respondent in his brief of argument adopted the six issues formulated for the determination of the appeal by the Appellants. I however cannot but note that the Respondent in the copious narration under “Introduction” in his brief of argument, complained about the description of

his status as “Chief Oliver Ohanwe”, by the Appellants. The Respondent claimed that this was a misnomer which the Appellants had repeated in the instant appeal. That the reference to him as a “Chief” is contrary to Section 20 and punishable under Section 21 of the lmo State of Nigeria Traditional Rulers and Autonomous Communities Law No.6 of 2006 (hereafter to be simply referred to as “Law No. 6 of 2006”). It is the stance of the Respondent that the lower Court on 12/3/2014, not only ordered that he be properly or correctly described as “HRH Eze” but that the Appellants complied with that order and amended their processes to reflect his (Respondent’s) lawful status. It is the stance of the Respondent that the continued reference to him as “Chief” portrays the order of the lower Court as having been set aside when there was no appeal against the same. The Respondent expressed his dismay as to the purport of paragraph 1.07 of the Appellants’ brief of argument and said to the effect that the Appellants possibly expected the lower Court to stop all pending proceedings in the case till the arrival of

counsel to the claimants or to have refused to rule on an issue that was about “practice or procedure but exclusively a question of law”(sic).

It is also pertinent to say that under the heading “summary of facts”, the Respondent stated amongst others to the effect that the Appellants ought to have discontinued the instant action after he filed his statement of defence and various witness statements on oath wherein the authentic constitution of the community duly certified by the primary custodian in law, i.e. the Local Government Area Council was exhibited. He claimed that the authentic constitution is part of the bundle submitted to Isiala Mbano Local Government Council pursuant to the law and is on pages 198 to 217 of the records of appeal. The Respondent further invited this Court to look carefully at the document on pages 27 to 34 of the records of appeal (which the Appellants challenged in this suit); in order to see that the said document is not the same as the documents on pages 198 to 205, which he (Respondent) annexed to his statement of defence. In the same vein, in some parts of the summary of facts, the Respondent

dwelled on the reply filed by the Appellants to his statement of defence.

I consider it pertinent to state at this point; and before I embark on the resolution of the issues for the determination of the appeal, that parties must be careful of what they want the Court to meddle with or interfere in; particularly when such a matter like the proper status of the Respondent, is not an issue for resolution in the instant appeal. Whether it is/was a misnomer or otherwise, the name by which the Respondent was sued was not in contention in the preliminary objections decided in the instant case by the lower Court on 6/2/2017, and which is the matter on appeal. I am of the considered view, that it is settled law, that appeals are not argued on grounds of appeal but on “issues formulated from the grounds of appeal”. This is why the law has also recognised the fact that a proper issue for the determination of an appeal, is not every slip committed by the Judge whose judgment is appealed from. Rather, for purposes of an appeal, it is a proposition of law or of fact so cogent, weighty and compelling that a decision on it in favour of a party to the appeal

will entitle him to the judgment of the Court. See the cases of CONSORTIUM M.C. (NIG) V. NEPA (1992) LPELR-893(SC); and UGO V. OBIEKWE (1989) NWLR (Pt. 99) 566, amongst many others.
I have hereinbefore, re-produced the grounds of appeal in the instant appeal. There is no ground of appeal that admits of the resolution of the proper manner in which the Respondent is to be addressed. The lower Court in its ruling being appealed against irrespective of whatever order it is said to have made on any date before 6/2/2017, stated the name of the Respondent as “Chief Oliver Ohanwe”. I believe that parties should not introduce into appeal proceedings whatever it is that they find unpalatable, surreptitiously and in the hope that an appellate Court would unwittingly get itself involved with such issue. It is by a ground of appeal or grounds of appeal that flow from a decision of the lower Court appealed against, that this Court can properly be called upon to dabble into matter(s) which is/are in contention between parties and in respect of which both or either of the parties is/are dissatisfied with the decision of the lower Court on the matter(s) in

question. I say no more on this.

Against the backdrop of the position of the law as enunciated in the above-mentioned cases, I am therefore of the considered view that the Respondent is clearly in complete misapprehension of the law, by referring to and relying in his brief of argument, on his case as set up in his statement of defence, the documents front loaded to his statement of defence (the position of which in any case had not been regularised as at when the lower Court entertained the

preliminary objections in which it delivered the ruling on appeal), and the reply of the Appellants to his statements of defence, in the bid to show that the lower Court was right in its decision, now appealed against.

Now, to the resolution of the issues for the determination of the instant appeal as formulated by the Appellants and which as it has been stated hereinbefore, were adopted by the Respondent. I however consider it pertinent to state that I consider it more appropriate to first deal with the issues raising the question of the nullity or incompetence of the proceedings and ruling of the lower Court, as raised by Appellants’ issues 4 and 5. This is because, if the decision of the lower Court is indeed a nullity for any of the reasons relied upon by Appellants, then there will be no need for the Court to consider the correctness or otherwise of the decision appealed against. See in this regard, the cases of IKECHUKWU V. FRN (2015) NWLR (Pt. 1457) 1; and EFFIOM V. ETENG (2018) LPELR-46130 (CA), amongst many others.

APPELLANTS’ ISSUE 4 – WHETHER THE TRIAL COURT WAS RIGHT IN LAW WHEN IT PROCEEDED TO HEAR THE PRELIMINARY

OBJECTIONS BY THE DEFENDANTS WITHOUT FIRST HEARING AND DETERMINING THE PENDING APPLICATION OF THE PLAINTIFFS TO AMEND THEIR STATEMENT OF CLAIM?
Dwelling on this issue, the Appellants stated the crux of their complaint to be that the lower Court denied them the right to fair hearing when it proceeded to hear the preliminary objections of the Respondent and Respondents respectfully, without first hearing and determining the motion on notice to amend their statement of claim. Having brought out the fore that the motion to amend their statement of claim was still pending before the lower Court, the Appellants submitted that it is trite that a Court is bound in law to consider all applications in a matter in the spirit of the principles of fair hearing guaranteed in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereafter to be simply referred to as “the amended 1999 Constitution”) and that this was fatal to the decision of the lower Court, dismissing the instant case. That, hearing the said motion and determining the same, is not only a constitutional right which went to the competence of the lower Court to

deliver the ruling appealed against, but granting the same might be capable of “serving” (sic: saving) the suit. This is particularly so when it was only the Appellants’ statement of claim that the lower Court would consider in determining the preliminary objections of the Respondent and Respondents respectively. It is the stance of the Appellants that the settled position of law in this kind of situation, is that the lower Court is robbed of jurisdiction, and that every proceeding, including the decision reached in the matter before it, are nullities. The Appellants urged this Court to set aside the ruling of the lower Court dismissing the instant suit for the reasons canvassed by them.

Dwelling on this issue, the Respondent urged this Court to find that the lower Court acted properly when it proceeded to entertain the preliminary objections before it “without waiting to hear and determine the abandoned applications of the Appellants to amend their statement of claim.” Like the Appellants did, the Respondent referred to proceedings presumably in the records of appeal to justify his position. It is the stance of the

Respondent that from all the circumstances in the instant case, the only reasonable inference was that the Appellants had abandoned their motion for amendment and should quit whining.

It is also the stance of the Respondent that apart from the fact that the Appellants abandoned their motion to amend their statement of claim, the lower Court in any event had a bounden duty to determine whether it has jurisdiction first, before proceeding with other “businesses of the action”. It is the stance of the Respondent, that the issue under consideration is not worth be labouring because it is trite law that even where a Court lacks statutory jurisdiction to try a matter, it has inherent jurisdiction to pronounce on its own jurisdiction. The Respondent urged this Court to resolve this issue in his favour.

If the Appellants are of the view that they responded to this issue as argued in the brief of argument of the Respondent, in their reply brief (which was poorly arranged), I do not see anything in the said reply brief worthy of being highlighted in the consideration of the issue under consideration.

I deliberately engaged in a copious

highlight of the submissions of the Appellants on the issue under consideration, because I am of the considered view that it is glaring from the said submissions, that the said Appellants only want to take an unwholesome advantage of the settled position of the law to the effect that a Court is bound to entertain and determine all motions pending in a matter before it, prior to the disposal of the said matter.
The position of the law that a Court must entertain and determine all pending applications in a matter, before it disposes of the same to finality, has been enunciated in a host of cases. One of such cases, is that of AKPAN V. BOB (2010) LPELR-376(SC) wherein the Supreme Court, while restating the principle of law in question, made it clear that it was for the party that filed an application or motion or process that a Court is alleged not to have entertained and determined before it disposed of a case to finality, to bring the existence of the said motion or any such other process, to the notice of the Court in question. In the case under reference and upon which I am of the considered view that the issue under consideration can be conveniently

determined, the Supreme Court said this much per Ibrahim Tanko Muhammad, JSC; (as he then was) in these words: –
“The trite position of the law is that where there are pending processes before a Court, such as motions or other applications, such issues have to be dispensed with before a final decision is taken on the main action or appeal. See: Irolo v. Uka …
Thus, it would be wrong of a Court, whose attention has been drawn to a pending process, such as Notice of withdrawal of appeal or motion on Notice to proceed to treat the appeal to finality when such processes have not been pronounced upon by it.
In the appeal on hand, a perusal at the said grounds of appeal, especially grounds 4, 6, 7, 8 and 9 shows that these grounds were premised upon a Notice of withdrawal of cross-appeal filed by the 5th respondent cross-appellant at the Court below. The Notice of withdrawal was dated 16th day of December, 2008 and filed at the same Court on 17/12/08…
My aim of disclosing the above episode is only to show that although there was filed a motion of withdrawal of the cross-appeal filed by the 5th respondent/cross-appellant, it is beyond any

doubt that all the parties were present in Court and actively participated in the hearing of the main appeal and the cross-appeals…
It is clear from the above that none of the parties drew the attention of the Court below to the pending Notice of withdrawal. A Court of law, it is my belief, does not possess a power of telepathy to know of facts that have not been brought to its attention by any of the parties involved in a dispute before it or even by the Registry of that Court. Inspite of what Order II Rule 4 of the Court of Appeal Rules 2007 (as amended) provides, I believe the Court is entitled to be informed of the correct position of any process that is pending before it so as to know that Court’s reaction on such a pending process. Where that is not done, justice has not been done to the Court itself. Thus, the Court below can hardly be blamed for proceeding to deliver judgment on the main appeal when its attention had never been drawn to any pending matter by it and it could not say anything on the pending Notice of withdrawal of the 5th respondent’s cross-appeal as it had no knowledge of its pendency. So, since there was no pronouncement by the

Court below on the Notice of withdrawal of the 5th respondent’s cross-appeal, the appellant could not have validly raised any ground of appeal on the Notice of withdrawal of the 5th respondent’s cross-appeal. Accordingly, grounds 4, 6, 7, 8 and 9 of the appellant’s Notice of appeal are incompetent and are hereby struck out.”
What has played out in the instant case, is like a script taken out from the case under reference. The Appellants in the knowledge of their motion to amend their statement of claim were the ones who applied for the consolidation of the preliminary objections which the lower Court entertained on 22/11/2016, when the instant case came up. The Appellants for reasons best known to them (but which I can now say was more of a strategy gone bad) resolutely kept mute in respect of the motion in question and which they have now made the subject of ground 4 in the notice of appeal. In my considered view, the Appellants supressed the existence of the said motion in the hope that they would put the non-entertainment of the said motion to use to their advantage in the event the preliminary objections entertained by the lower Court was

resolved against them and which the lower Court ended up doing. Given the situation surrounding the motion of the Appellants to amend their statement of claim, it becomes obvious that the lower Court not possessing a power of telepathy, could not possibly be said to have refused to entertain and or struck out the same at the hearing of the preliminary objections it entertained, or in the ruling appealed against. When a party in a case refuses or neglects to bring to the notice of a Court the existence of a motion filed by him, and which he later contends that the Court in question did not entertain and or decide one way or the other, I am of the considered view that the party that brought the motion, can be said to have abandoned the motion in question having not done the needful at the appropriate time. Parties have their own duties or roles to play in litigation and I am of the considered view that one of the duties or roles is to ensure that process(es) they file and in respect of which they wish the Court to take any meaningful decision is/are brought to the notice of the Court in question at the appropriate time. This, the Appellants did not do in respect

of their motion for amendment of their statement of claim. The Respondent in my considered view, is on very firm ground in describing the Appellants’ motion for amendment of their statement of claim (upon which they have predicated their ground 4 and issue 4 distilled therefrom), as an abandoned motion. In any event, and as it has not been remotely suggested by the Appellants that the preliminary objections entertained by the lower Court on 22/11/2016, actually went to challenge the jurisdiction of the said Court to entertain their (Appellants’) case, and for a decision of the lower Court thereon, it would appear that even if the attention of the lower Court had been called to the existence of the said Appellants’ motion to amend their statement of claim, the lower Court would have been eminently in order to have entertained the preliminary objections before it without first entertaining the motion in question. This is because the settled position of the law at least as it relates to ordinary civil proceedings (in contradistinction to proceedings to which the Administration of Criminal Justice Act applies as well as election petitions), is

that the objection on jurisdiction must be taken first. See in this regard amongst many others the case of NTUKS V. NPA (2007) LPELR-2076 (SC) wherein the Supreme Court stated thus: –
“It is elementary law that where a party raises an objection on jurisdiction, the Court must take the objection first and that is what the learned trial Judge did in her ruling of 7th December, 2001. I cannot fault the learned trial Judge.” See also the case of NANLE V. FRN (2018) LPELR-44457(CA).
In any case, it would appear that the Appellants are oblivious to the fact that the matter of their motion to amend their statement of claim having not been brought to the notice of the lower Court on 22/11/2016, to enable the said Court decide on whether or not it would entertain it, the said matter undoubtedly now qualifies as a fresh issue and which having regard to the settled position of the law, cannot just be taken up at this stage without the leave of this Court, having first been procured to raise and argue the same. It therefore becomes obvious in my considered view that ground 4 in the notice of appeal and the issue under consideration distilled therefrom,

are incompetent as they have no basis in the proceeding before the lower Court on 22/11/2016, and the decision of the lower Court therein. Taking a cue from the Akpan’s case cited hereinbefore, ground 4 in the Appellants’ notice of appeal and issue 4 distilled therefrom, must be and are hereby struck out as being incompetent.
In conclusion, and flowing from all that has been said, is that the ground of appeal (i.e. 4) by which the Appellants raised the issue of the nullity of the proceedings of the lower Court on 22/11/2016 and decision of 6/2/2017, and the issue distilled therefrom (i.e. 4), having been struck out for incompetence, the Appellants have thereby woefully failed to demonstrate that the proceeding and decision of the lower Court, is a nullity. The issue under consideration, is accordingly resolved against the Appellants in the circumstances.

APPELLANTS’ ISSUE 5 – WHETHER THE FAILURE OR REFUSAL OF THE TRIAL COURT TO STRIKE OUT THE NAME OF THE 4TH DEFENDANT WHO WAS REPORTED DEAD AND PROCEEDING TO DELIVER A RULING AGAINST THE DEAD AND THE LIVING TOGETHER DID NOT RENDER THE SAID RULING A NULLITY.
Dwelling on this

issue the Appellants stated that on 22/11/2016, they reported to the lower Court that the 4th Plaintiff has died and that the said Court duly noted the information, to wit: “4th claimant reported dead”.

It is the stance of the Appellant that the lower Court was under a duty to strike out the 4th plaintiff’s name upon being reported dead. That a Court is not expected to still keep the name of a party on record having become aware of his demise. That on 6/2/2017, on page 396 of the records of appeal, the lower Court was again reminded that the 4th claimant has died. That it was a mistake when it was recorded by the lower Court that the “4thDefendant is reported dead” instead of the ‘4th plaintiff is reported dead.’

The Appellants submitted that a dead party, in the eyes of the law, is no longer a person as he has ceased to have legal personality and therefore cannot maintain an action in Court, alone, or with others alive. That it is the duty of the Court to strike out the name of a party reported dead upon report in this regard being made to the Court. That in this case, the lower Court was aware of the death of the 4th

claimant (now plaintiff by the Rules of Imo State High Court) but failed or refused to strike out the name. That this fact distinguishes the instant case from other cases where a party died in course of the proceedings. It is the stance of the Appellants that in the instant case, the lower Court has no jurisdiction to hear an application involving or affecting both the dead and the living. That an application brought against a dead party and the living parties in a suit, is incompetent, except the name of the dead party is first struck out before hearing and/or determining the application or suit. That a Court has jurisdiction only over the living. That it is not a case of irregularity where the death of the 4th claimant was reported to the lower Court which merely noted it but failed to strike out the name. The Appellants submitted that the decision of the lower Court in the circumstances ought to be declared, a nullity and be set aside.

Dwelling on this issue, the Respondent having initially expressed his reaction to be to ignore the same as the Appellants did not disclose what injury or miscarriage of justice they suffered as a result, however went on

for purposes of the records and in acknowledgment of the enormous industry of the Appellants’ Counsel, to submit that the lower Court took judicial notice of the death of Nze Cyprian Anyiam, the hitherto 4th claimant before it. The Respondent stated that the ruling being challenged here is not executorial in nature and therefore has no bearing on the dead. That whether the man is alive or dead, it would not have any impact on the case before the lower Court. This is because the ruling was for the determination of the Court’s jurisdiction. The Respondent urged this Court to resolve the issue under consideration in his favour.

In their reply brief of argument, the Appellants in my considered view simply engaged in a re-argument as it were, of the issue under consideration that they had copiously argued in their brief of argument. Therefore, I do not see any need to engage on any review of the submissions made on the issue under consideration in their (Appellants’) reply brief. This is more so as I have before now embarked on the review of the argument of parties in respect of the issues formulated for the determination of the appeal, stated the

position of the law to be that it is the writ of summons and statement of claim that is/are or ought to be considered by a Court in the resolution of the issues the lower Court distilled for the determination of the preliminary objections it entertained.

I deliberately highlighted the submissions of the Appellants on this issue copiously; as I am again, of the considered view that the hollowness of the position of the Appellants on the said issue, is not only glaring, but equally pathetic. Unlike the Respondent, I simply do not see any enormous industry at the instance of the Appellants directed at any useful purpose on this issue. I would have comfortably resolved this issue peremptorily against the Appellants, but for the fact that I see the need to re-state as it were, that parties and the Court have different duties and roles in the course of entertaining a matter submitted by them for determination, by the Court. From my research into the cases, it is certainly not for a Court to think for any of the parties and to grant an order or orders not asked for; particularly when whatever lapse that has occurred in a case is such that can be remedied by

seeking for an appropriate order. The Court as an impartial arbiter is to look on and see what the parties make of their respective cases. It would however now appear that because the Courts are more interested in seeing that substantial justice is done in a matter and have often times bent backwards to make orders not specifically sought for by the parties (but which orders the parties should have sought for), parties are increasingly laying any act of commission or omission committed by them in not doing the needful, in the course of a matter, at the doorstep of the Court. The position of the Appellants on the issue under consideration is a clear manifestation of the saying – “no good deed goes unpunished”.
The Appellants in the instant case are the ones who nominated the named parties to pursue their case against all the Respondents on record. The 4th claimant (around whom the Appellants have weaved their argument on the issue under consideration) is known to the Appellants to have died; consequently, they reported his death to the Court. The Appellants who brought the case aside from reporting the death of the 4th claimant to the lower

Court, made no application for the said deceased party to be struck out as a named party on record. Indeed, whether or not the Appellants described the 4th claimant as the 4th Appellant in the instant appeal, his name still featured in the notice of appeal. It is clear from the Appellants’ submissions on the issue under consideration, that they expected the lower Court to have struck out the name of the 4th claimant reported to have died, on its own motion. This is absurd. The Appellants as captain of their ship should have known what to do if they did not want the name of the deceased 4th claimant as contained in their processes to continue to feature in this case. I am of the considered view that the lower Court by consistently noting in its records “4th claimant is reported dead” sequel to the information supplied to it by the Appellants, has sufficiently disclosed to the reasonable person and also displayed its mental awareness that it is not reckoning with the 4th claimant reported to have died, in the entertainment of the case or any proceeding therein.
There are many cases dealing with death of a party in the Law Reports. The

position of the law in this regard is that the death of a party to a suit does not render a case incompetent if the dead party even if the sole party can be substituted with another living person once the cause of action survives the dead party. It is also the position of the law that where one or more of many named parties to an action dies, the action is not rendered incompetent so long as there is one of such parties who in any event brought their action because of the common interest they have in the action. See the cases of SAPO V. SUNMONU (2010) LPELR-3015 (SC); and OKOLI V. THE SURVEYOR-GENERAL ANAMBRA STATE OF NIGERIA (2002) LPELR-2462(SC). Indeed, I am of the considered view that the Appellants would not have made the preposterous submissions they made on this issue and to have also sought for the nullification of the ruling of the lower Court on appeal, if they had made any meaningful research into the cases and decided to be guided by the decision of this Court in the case of AWOYEMI V. FASUAN (2006) LPELR-8227(CA). This Court in the case under reference said thus: –
“Next, I think I should take the fourth issue in the appellants’ brief

…The complaint here is that the death of the 6th defendant vitiated the judgment given against the surviving defendants just because the deceased defendant was found liable along with them. Learned counsel on behalf of the appellants dogmatically submitted that the entire judgment “is fatally vitiated and rendered incompetent by the presence of the 6th defendant, who was reported dead before the judgment is delivered”, because “the judgment was meant to affect the deceased 6th defendant notwithstanding that he had ceased to be a person in the eyes of the law”. In learned counsel’s final submission, “the learned trial Judge acted in vain when he delivered judgment against the 6th defendant who cannot be found blameworthy in law”. In reaction learned counsel for the respondent drew attention to the decision of the Supreme Court in In Re. Egbo II (2002) 10 NWLR (Pt. 774) 41 at 62, and submitted that the death of the 6th defendant did not invalidate the judgment of the Court as it affected the surviving defendants.
With all due respect to the appellants, their complaint here is a frivolous (sic) one. In the first place, the death of one of several

defendants does not necessarily put a stop to the proceedings. So that, even if, without making a substitution, the Court proceeds to judgment against all the defendants, as happened in this case, the judgment cannot, on account of the non-substitution alone, be declared a nullity. Even if it was a mistake on the part of the Judge to have entered judgment against a dead man, in what manner has that mistake affected the validity of the judgment given against the living defendants who fully and actively participated in the proceedings? It was not as if the primary liability was that of their deceased colleague and theirs was only secondary to that. The plaintiff/respondent had his complaint against each of the defendants that was independent of the complaints against the others. A mistake made in considering the case against one defendant does not necessarily vitiate what has been done in respect of the others. In, In Re Egbo, the Supreme Court, per Ayoola, JSC, put the matter beyond argument when the learned Justice of the Supreme Court firmly held that –
“The respondents in this appeal were right in their contention that the application dated 13th

November, 1995 could not have been rendered null and void by reason alone of the death of Henry Okoli since the 2nd respondent to the application, the Surveyor-General, was a living party. Where proceedings are brought against two or more persons at a time when one or more, as the case may be, of such persons has or have died, the proceedings do not become a nullity. It could be put light (sic) by striking out the name of the dead party or parties, of course, without prejudice to a substitution of fresh parties for the deceased parties. In this regard, the appellant had put his case rather too highly by contending that the application in question was a nullity. Weak as the chance of its success may have been without a person who is a necessary party being joined, it remained nevertheless a live application.”
Notwithstanding that the judgment in the case on appeal before us was given against all the defendants, including the 6th defendant, who had died in the meantime, the appellants cannot avoid the effect of the judgment as it relates to each of them, unless, of course, there are other valid grounds for granting them relief from such effect.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The notes of proceedings for 22/11/2016 on page 393 of the records of appeal when the lower Court entertained the preliminary objections that were consolidated, reflect the fact that even though 4th claimant was reported dead, “U.N. Durueke with N.O. Chukwuezi appeared for the claimants/respondents”. The Claimants/Respondents can only be the claimants set out in the processes before the lower Court and ex-facie the proceedings of the day in question, they are 4. Learned lead counsel for the claimants is not recorded as having announced his appearance for the claimants except the one reported to be dead. In the same vein, it is clear on the face of the ruling delivered by the lower Court on 6/2/2017, that N.D. Chukwuezi appeared for the claimants even though it was recorded that “the 4th claimant is reported dead.”
Suffice it to say that I am of the considered view that issue 5 is clearly lacking in bona fide.
Flowing from all that has been said, is that Appellants’ issue 5, is resolved against them. The proceedings and decision of the lower Court in the preliminary objections brought by the Respondent and Respondents

respectively, cannot be held to be a nullity because of the inclusion of the name of the 4th Appellant as a party in the preliminary objections filed by the said Respondent and Respondents and which the lower Court ruled upon, on 6/2/2017.

Appellants’ issues 1, 2 and 3 will be resolved together as it has been said hereinbefore that the issues are ordinarily resolved on a consideration of the statement of claim before the Court.

APPELLANTS’ ISSUE 1 – WHETHER IN RESPECT OF 2ND – 4TH DEFENDANTS THE PLAINTIFFS’ ACTION IS STATUTE BARRED UNDER THE PUBLIC OFFICERS PROTECTION ACT?
Even though the Appellants appear not to dispute the fact that their cause of action as set up in the statement of claim was one to which the provisions of the Public Officers Protection Act, P. 41 LFN 2004 (hereafter to be simply referred to as Public Officers Protection Act”) applied, it is their stance in the main that Section 2(A) of the said Act was wrongly relied on by the lower Court in arriving at the conclusion/decision that the instant action as it relates to the Respondents was statute barred. In this regard, the Appellants relied on

the averments in paragraphs 18-20, 23 and 26 of the statement of claim as they relate to their cause of action. The Appellants claimed that it was obvious from the averments in the statement of claim that it was on 27/8/2012, that they obtained the purported constitution which established the existence of the purported constitution that is the subject of their action. That it was from this date that their cause of action arose and time started to run for the purpose of the application of the Public Officers Protection Act in respect of the Respondents.

It is the stance of the Appellants that it would have been preposterous for them to have brought their action based on a rumour and against a document that they were not even aware of its existence and did not know its provisions. They submitted that it is not part of our legal jurisprudence that an action in Court can be brought based on rumour or speculation. The Appellants submitted that they were under disability to approach the Court in 2011, on the subject matter of their action as they were ignorant; unaware or uninformed of the existence of the purported constitution. That both the making and

depositing of the purported constitution, were concealed from the people and their town union.

The Appellants submitted that another issue that makes Section 2(A) of the Public Officers Protection Act, inapplicable is the allegation of fraud, forgery and impersonation in the making of the purported constitution. The Appellants submitted that this is the cumulative effect of a community reading of paragraphs 24 – 29 of the statement of claim. It is the stance of the Appellants that the weighty averments in paragraphs 24-29 of the statement of claim raised allegations of fraud, forgery and impersonation which on ground of public policy, ought to be considered by the lower Court. That the provisions of the Public Officers Protection Act, are not absolute and will not avail the Respondents any protection in the instant case. That the conduct of the 1st Respondent in the equitable sense, denotes fraud being a conduct against conscience. The Appellants urged this Court to resolve this issue in their favour, having emphasised that their cause of action could not have arisen in 2011, when the purported constitution was allegedly made, as they (Appellants) did not

participate in its making and therefore cannot be said to know of its existence and its content.

Though not conceding that the instant action was statute barred, it is the stance of the Appellants that as their suit was not found to be statute barred against the Respondent, it follows that the said suit ought to have continued against him – Respondent who is not a public officer and cannot claim any protection or benefit under the Public Officers Protection Act.

Dwelling on this issue, the Respondent submitted and urged this Court to hold that there is no dichotomy of parties in matters of limitation laws. That an action is statute barred or not. The Respondent thereafter made various submissions in respect of his stance that the suit brought by the Appellants was statute barred. I however do not consider it expedient to highlight the submissions of the Respondent in this regard. This is because he delved into his statement of defence and evidence in the witness statements on oath in respect of the many averments in the said statement of defence, for this purpose. Indeed, he did the same, in respect of the Appellants’ case.

Suffice it to say that having not bothered to highlight the arguments of the Respondent based on his statement of defence (the position of which in any case was yet to be regularised), and the evidence in the witness statements on oath in respect of the many averments therein, I see no basis for wasting time to consider the arguments in the Appellants’ reply brief on the issue under consideration and which the Appellants have tagged as a fresh issue(s).

APPELLANTS’ ISSUE 2 – WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE PLAINTIFFS ARE ROBBED OF THE REQUISITE LOCUS STANDI TO SUE?
Dwelling on this issue, and having stated what the term locus standi connotes, the Appellants in the main submitted that the lower Court was wrong in the conclusion it reached on the matter. The Appellants submitted that their locus standi was in no doubt having regard to the averments in their statement of claim; particularly the averments in paragraphs 2, 24, 26, 27, and 28, thereof.

The Appellants posed the question as to whether it could be rightly said that they have no locus standi to bring the instant action challenging the legality of a

purported constitution that lied on the face of it and against them? The Appellants answered the question in the affirmative. It is the stance of the Appellants that it was legally erroneous for the lower Court to have held that they have no requisite locus standi when in the pleadings, they disclosed the status of each of the 1st and 2nd Appellants. That the 2nd Appellant who is stated in the purported constitution as the secretary of the constitution drafting committee that produced the purported constitution, even though he is the secretary general of the town union, averred that he was not part of the constitution drafting committee. The Appellants submitted that there is (sic: no) dispute that under the Imo State Traditional Rulers and Autonomous Communities Law, No.6 of 2006, (hereafter to be simply referred to as “Law No. 6 of 2006”), it is the town union of an autonomous community that gives or makes a constitution to/for a community. That Section 43 of Law No.6 of 2006, provides for the functions and duties of the town unions; while Section 31 of the same Law, established the town unions for autonomous communities in Imo State which

include the Ihim town union. That though the 3rd Appellant is stated in the purported constitution as the Chairman of the committee that drafted the same, he has averred that this is not correct. The Appellants submitted that it is important to note that the lower Court in its ruling did not state that the town union has no role to play in the making of the community constitution. That in the circumstances, it is a travesty of justice for the lower Court to have held that the president-general and the secretary-general of the town union which has the duty to make a constitution for the community, have no requisite locus standi to institute the instant action. This is more so as the instant action is a representative action, i.e. an action by the town union the membership of which is the people of the community and therefore not a personal suit.

Dwelling on this issue, the Respondent urged this Court to hold that the lower Court was right when it held that the Appellants are robbed of the requisite locus standi to sue. It is the stance of the Respondent that it is not rocket science having regard to the statement of claim that the 1st Appellant derived his

authority from his claim as president general of Ihim autonomous community while the 2nd Appellant derived his own vires from his claim of being the secretary general of their community. The Respondent thereafter went on to dwell on matters which were not averments in the statement of claim to support his stance. I will not dwell further on the submissions of the Respondent on this issue in the circumstances.
The Appellants said nothing new on this issue in their reply brief of argument.

APPELLANTS’ ISSUE 3 – WHETHER THE ACTION BY THE PLAINTIFFS DISCLOSED A CAUSE OF ACTION TO BE HEARD BY THE TRIAL COURT?
Dwelling on this issue, and having stated the positions of the law as to the meaning and how to resolve whether or not an action discloses a cause of action, the Appellants submitted that the lower Court was wrong in its decision on the issue. It is the stance of the Appellants that it was wrong for the lower Court to have restricted its search for a cause of action to paragraph 32 of the said statement of claim. That in the instant case, they (Appellants) raised weighty issues that touched or impugned the validity or legality of the

purported constitution which if proved during trial would render the constitution a nullity in law and therefore ineffective. The Appellants urged this Court to hold that the instant action disclosed a cause of action and that the matter ought to be heard on merit.

Dwelling on this issue, the Respondent urged this Court to hold that the instant case did not disclose any cause of action to be tried by the lower Court. It is the stance of the Respondent that the issue of cause of action and locus standi are separate but interwoven. That a party without locus standi to sue, cannot be said to have a cause of action. That the same is true in cases where an action is statute barred as in the instant case. The Respondent submitted that where the Appellants’ right of action has been extinguished or removed by law as in the instant case, the cause of action becomes mute and unenforceable against all the Respondents. That the lower Court is accordingly estopped from invoking its judicial powers to determine issues between the parties.

Having read the reply brief of argument of the Appellants, I do not see anything new that they said therein, in respect of the

issue under consideration.

Having painstakingly read the ruling of the lower Court appealed against, I am in no doubt that the Appellants are clearly in complete misapprehension of the reasoning of the lower Court in respect of the above stated issues. This is either because they did not get the reasoning of the lower Court clearly from the numerous portions of the judgments the said Court re-produced in its ruling, or they did not read the judgments in question, or did not understand the said judgments.

The issues of locus standi, cause of action and whether an action is statute barred in my considered view, cannot be sensibly resolved without first identifying the right of action of the Appellants and from where the said right of action is derived. In the instant case the lower Court stated without equivocation on page 401 of the records of appeal thus: –
“Without much ado, I agree with Mr. Chukwuezi of counsel to the claimants that Section 28 of Imo State of Nigeria Traditional Rules (sic: Rulers) and Autonomous Communities Law No. 6 of 2006 is applicable here. This is because the contest as in this case does not turn upon Ezeship or

Autonomous Communities contest. It is instead on the validity or otherwise of the alleged constitution.”
Again, on page 403 of the records of appeal; the lower Court stated thus: –
“What then are the averments in the Claimants’ Statement of Claim that touches on the title to sue and cause of action herein?
By their 32 paragraph Statement of Claim, the claimants’ interest is to the preparation and giving unto themselves an Ihim autonomous (sic) Community Constitution by Ihim people. This is a general interest averment. But their interest ought to be elevated or go beyond that and ought not to be shared with other members of society…
What then is the special interest the claimants have in this constitution or in making it or making it unto themselves. I see none and they have not averred any. This discounts their perceived standing in bringing or prosecuting this case. They are robbed of the requisite locus standi. Again as a corollary, it follows that there is no cause of action manifested by the statement of claim.”
The Appellants in my considered view have not appealed against the correctness of the position of the

lower Court that their action is a challenge to the validity of the constitution applicable to the Ihim Autonomous Community. The position of the law undoubtedly is that the Courts must take judicial notice of all Laws in existence in this country unless such law(s) has/have been abrogated. It is also the law that the jurisdiction of a Court is determined by the existing law at the time the cause of action in dispute arose, and not, by the existing law at the time the Court’s jurisdiction is invoked. See the case of THE GOVERNOR OF OYO STATE V. OBA OLOLADE FOLAYAN (1995) 8 NWLR (Pt. 414) 292. Indeed, see the case of AREMO II V. ADEKANYE (2004) Vol. 11 MJSC 11, wherein the Supreme Court in reiterating this position, long ago stated thus: –
“In this connection, a careful reading of the six reliefs claimed by the Appellant in paragraph 72 of the Statement of Claim as set out in the introductory part of this judgment reveals that they relate to a chieftaincy title, that is, the paramount rulership or Oba of Akungba. Being a chieftaincy matter, the jurisdiction of the Court to entertain such a matter was before the 1979 Constitution ousted.

However, that position was revised by the 1979 Constitution by virtue of Section 236 thereof. The crucial question then is whether the Appellant’s action which was not justiciable before 1979 when it accrued could be entertained in the law Court in 1988 that is, when the 1979 Constitution was in force? The legal position is that the applicable law to a cause of action is the law prevailing at the time the cause of action arose notwithstanding that that law had been revoked at the time the action is being tried: …
In respect of practice and procedure, the applicable Rules of Court are those in force at the time of the trial: …”
I have in the course of my research into this case, discovered that Law No. 6 of 2006, amongst other enactments have been repealed by the Imo State Traditional Rulers, Autonomous Communities and Allied Matters Law, No. 15 of 2016. However, it is clear against the backdrop of the position of the law as stated above, that it is Law No. 6 of 2006, vis-a-vis the case of the Appellants, that have to be considered in this judgment.
Law No. 6 of 2006, is titled “A law to harmonize the Traditional Rulers,

Autonomous Communities and Allied Matters in Imo State”. The Law makes provisions basically for the establishment of the State Council of Ndi Eze; Functions of the Council; establishment of Local Government Council of Ndi Eze; functions of the Local Government Council of Ndi Eze; creation of autonomous community, application for recognition as an autonomous community; validity of the constitution of an autonomous community; establishment of town union; application for registration of the town union; matters to be provided for in the town union constitution; and functions of the town union amongst others. Under this Law, some of the functions of State Council of Ndi Eze, is to advise Government in respect of matters which include: (i) law and order in the State; customs and traditions of the people of the State, (ii) ascertaining and deliberating on the customs and traditions of the people of the State; and intervening in any dispute or misunderstanding between the State and another or any matter involving a great citizen of the State with another State of the Federation. Under the said Law, the functions of the Local Government of Ndi Eze include (a) to

advise the Local Government on matters relating to law and order; (ii) customs and traditions of the people of the Local Government Area and (iii) to intervene with a view to peacefully resolving any conflict between communities and between neighbouring Local Governments. This Law, equally makes copious provisions from Section 5 relating to the identification, selection and appointment by each autonomous community of its Eze and presentation to the Local Government Council which has power or jurisdiction over the said autonomous community. Also, the Law provides to the effect that where an autonomous community has unanimously and successfully identified, and appointed its Eze, it shall be incumbent on the autonomous community to set down on paper in details its method, manner or tradition of identifying, selecting, appointing the Eze, and shall submit the document to the chairman of the Local Government on the day of presentation of its Eze. The document mandatorily must contain amongst others (i) the date on which he was appointed as the Eze; and (ii) a full account of the customary law of the community regulating the process of identifying, selection,

appointment and installation, suspension, deposition, rights and privileges of the Eze of the community. It is equally clear from Section 5(3) of Law No. 6 of 2006, that these documents which are to be forwarded to Local Government Council are to be submitted to the Governor with the comments of the said Local Government Council for the purpose of recognition of the Eze by the Governor. Section 6(1) of the Law states to the effect that the recognition of an Eze of an autonomous community must be done on a date and time approved by the Local Government and that the place must be where members of the public or community have access. Furthermore, it is provided to the effect in Section 6(2) that an Eze of an autonomous community shall be deemed to have been presented to the Governor or any other person appointed by the Governor in that regard for the purpose of his recognition, if he was presented on the date and at the time approved by the Local Government. While in Section 26 the Law provides that where there is a protest against the creation of new autonomous community or selection of an Eze for a community, the Government shall have power to conduct a

plebiscite to ascertain their wishes; Section 27(1) of the Law (i) further provides to the effect that (i) a copy of the constitution of an autonomous community having been forwarded to the Chairman of the Local Government shall not be amended unless the Governor is satisfied that there is good reason or cause for the amendment; (ii) Section 27(2) provides to the effect that the constitution so forwarded to the Chairman of the Local Government or as amended shall be deemed to have stated or embodied the customary law of the community in relation to matters specifically dealt with therein; (iii) Section 27(3) provides that the Adviser to the Governor or Commissioner for Chieftaincy Affairs shall have the custody of all community constitution forwarded or amended in compliance with the provision of Law No. 6 of 2006; and (iv) Section 27(4) provides that any amendment to the constitution of an autonomous community must be by the said community or its authorized agent or traditional representative. Section 31 of Law of No. 6 of 2006, provides for the establishment of a town union for each autonomous community; the purpose of a town union which is

“socio-economic development of the people. Section 32 prohibits the performance of any act in furtherance of the purpose for which a town union is formed unless the union has been registered (but not for the collection of dues necessary for getting the union registered). Section 33 provides that an application for the registration of a town union shall be made to the Chairman of the Local Government Council and shall be signed by the president and secretary of the town union and that every such application shall be accompanied by two copies of the constitution of the town union. Section 34 provides that every town union shall have a registered constitution which must contain provisions with respect to the various matters that concern the community and that the Chairman of the Local Government shall not register a town union unless it has a constitution which contains such provisions as required by law and that if he registers a town union, he shall at the same time register its constitution; Section 36 provides to the effect that the Council with a two third majority votes of its members shall withdraw the registration of a town union if amongst others

it is proved that the registration was obtained by fraud or as a result of mistake; Section 43 provides to the effect that apart from the duties and obligations imposed on a recognised town union by its constitution, the town union amongst others shall amend its constitution according to laid down rules and procedure.
The Appellants in their brief of argument have referred to Sections 43 and 31 respectively, of Law No. 6 of 2006 in arguing that they have the locus standi to have brought the instant suit. On the other hand, the Respondent in arguing that the instant action was statute barred, have referred to Sections 5, 22(a)(ii) and 27 of Law No. 6 of 2006.
Given the overview of Law No. 6 of 2006 narrated hereinbefore, I am of the considered view that whatever cause of action the Appellants have in respect of the validity of the constitution of their autonomous community in the instant case, must be in furtherance of a right of action the Appellants have or derive from this law. See in this regard the case of NIGERCARE DEVELOPMENT COMPANY LTD. V. ADAMAWA STATE WATER BOARD (2008) LPELR-1997(SC), (2008) 9 NWLR (Pt. 1093) 498 wherein the Supreme Court

dwelling on the term “right of action” stated thus: –
“In the case of Attorney-General of the Federation & 2 Ors. v. Sode & 2 Ors. (1990) 1 NWLR (Pt.128) 500 @ 538; (1990) SCNJ. 1 – Karibi- Whyte, JSC, (Rtd.) in his concurring judgment, stated inter alia, as follows:
“… But it is also well settled that the exercise of a right of action is derived from the fundamental law of the land, or any statute specifically conferring such right. The Court can only exercise jurisdiction with respect to a right of action and cannot assume jurisdiction unless the plaintiff who has brought the action before it has a right of action – See Bello & Ors. v, A-G for Oyo State (1986) 5 NWLR (Pt.45) 828. This Court has in many recent decisions defined what a right of action.”(italics mine)
Also see the cases of EGBE V. ADEFARASIN (1987) LPELR-1032 (SC), (1987) 1 NWLR (Pt. 47) wherein the Supreme Court stated thus: –
“A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual

situation) which give rise to a right of action which itself is a remedial right.
and ADEKOYA V. FHA (2008) LPELR-105(SC), (2008) 11 NWLR (Pt. 1099) 539.
I am of the considered view, that it is clear from a comprehensive reading of Law No. 6 of 2006, particularly the general overview narrated hereinbefore, that while the existence of a “document” setting down in details the method of appointment, manner or tradition of identifying, selecting, appointing an Eze, duly submitted to the Chairman of the competent Local Government Council and the content of which are spelt out in Section 5(2)(a-d) of Law No. 6 of 2006, is a sine qua non for the recognition of an Eze of any autonomous community; the making of a constitution for an autonomous community or its amendment, is for the registered town union of an autonomous community and that a town union cannot be registered unless it has a constitution and which constitution must contain provisions with respect to the various matters that concern the said autonomous community.
The Appellants have submitted that the lower Court restricted its consideration of their case to the averments in paragraph

32 of the statement of claim only. The averment in the said paragraph aside from the claims/reliefs set out thereunder read thus: –
“The claimants aver that all actions taken under or pursuant to the said IHIM AUTONOMOUS COMMUNITY CONSTITUTION made on 10th February 2011 do not bind them and will never be accepted by them.”
Aside from the averment in paragraph 32 re-produced above, the Appellants have averred in the following paragraphs of the statement of claim: –
“Paragraph 4
The Claimants further avers that the 1st Defendant was until 2007 the traditional ruler of Isiama Autonomous Community in Isiala Mbano Local Government Area of Imo State when he was dethroned by Imo State Government under Chief Ikedi Ohakim’s administration.
Paragraph 10
Ihim Autonomous Community is in Isiala Mbano Local Government Area and was created in 2011, on 23rd May 2011 or thereabout.
Paragraph 11
Ihim Autonomous Community was created out of Isiama Autonomous Community.
Paragraph 12
Ihim Autonomous Community was created by the Imo State Government on ground of peace to resolve and put to rest permanently the

bickering and bitterness that existed between Umuihim and the rest of Isiama Autonomous Community.
Paragraph 13
As at the date of the creation of Ihim Autonomous Community, the traditional ruler of Isiama Autonomous Community was Eze Gabirel Amaku, the Obi ii of Isiama, who till date is the Eze.
Paragraph 14
Ihim Autonomous Community is yet to have a traditional ruler, as the people did not identify, select and present anyone to the Imo State Government as the traditional ruler of the new autonomous community and has not prepared and or adopted any Constitution as of then in 2011.”
It has hereinbefore been shown that the identification, selection, appointment and installation of an Eze for an autonomous community, is contingent on submission to the Chairman of the Local Government Council having jurisdiction in respect of a particular autonomous community of a document containing certain matters which have been set out hereinbefore. It is in my considered view, glaring from the averments in the statement of claim, that the Appellants in apparent knowledge of the position of the law that they did not challenge the appointment of

the Respondent as an Eze within the time frame provided by Section 28 of Law No. 6 of 2006, simply set out to surreptitiously achieve the same objective by challenging the validity of the constitution of their autonomous community as it was not made by their town union. Whether or not the Respondent was once an Eze of any autonomous community in 2007, the Appellants coupled with the fluidity of the dates mentioned by them in their statement of claim, clearly and definitively averred that the actions taken in respect of the Respondent were so taken under a constitution made on 10/2/2011. The averment in the said paragraph 32, admits of the position in Law No. 6 that an Eze cannot be identified, selected, appointed and recognised in the absence of a “document” submitted to the Chairman of the competent Local Government Council and which document together with the comments of the Local Government must be forwarded to the Governor for the purpose of recognising an Eze. The declared non-acceptance of the “document” (which the Appellants have decided to ascribe the name constitution to) and the fact that they procured a copy of the

constitution sometime after it was made, in my considered view is of no moment as sighting the same is not a sine qua non to instituting an action in respect of the same. This is because it is in my considered view clear from the general overview of Law No. 6 of 2006, narrated hereinbefore that whatever steps that were taken under what the Appellants have chosen to call constitution, made on 10/2/2011, by law could not have been done in secret and which the Appellants inasmuch as they claim to be members of the autonomous community of Ihim cannot plead to have been unaware of. In other words, the Appellants’ cause of action in respect of all actions taken under the “constitution” started to run from the date they pleaded that the constitution was made, i.e. 10/2/2011, and not when they chose to procure a copy of the same.The position of the law regarding the application of the Public Officers Protection Act, to a chieftaincy matter such as the instant case glaringly, is no longer in dispute. In this regard, see the case of IBRAHIM V. LAWAL (2015) LPELR-24736(SC) wherein the Supreme Court stated thus: –

“Finally, the learned counsel for the 1st – 4th respondents submitted that the Statute of Limitation does not apply to chieftaincy matters. This is not correct as there is no law which supports that position … In fact, in Okere v. Amadi (2005) 14 NWLR (Pt. 945) 545 at 561 this Court per Akintan, JSC in his contributory judgment captures the issue in the following words:
“The main question raised in this appeal is whether a law fixing time within which any person aggrieved by the recognition given to a newly appointed Traditional Ruler in Imo State could commence an action challenging the appointment is proper and not in conflict with any of the provisions of the Constitution. The appellant was appointed as the traditional ruler of Avu Autonomous Community in Imo State. The appointment was recognised by the Imo State Government and a letter to that effect dated 17th April, 1996 written by the Secretary to the State Government, was sent to the appellant.
Section 25 of the Traditional Rulers and Autonomous Communities Law of Imo State(No. 1 of 1981) provides inter alia,
“…”
In Okere’s case (supra) the respondent filed application in the High

Court outside the 21 days prescribed by law. His Lordship went on to say at p.562 as follows:-
“I have no doubt in holding that the Sections of the 1979 Constitution referred to do not proscribe any legislation prescribing the time within which an action could be commenced. It is a notorious fact that chieftaincy tussles in many parts in many parts of the country constitute a major cause of unnecessary tensions within the communities. It is therefore appropriate for a state government to enact laws prescribing time limit within which disputes relating to relating to appointment of chiefs within the state could be challenged, as in the instant case. The Court below was therefore totally wrong in its decision that the Imo State Law in question in this case was in conflict with any provision of the 1979 Constitution.”
I have quoted the judgment of His Lordship, Akintan, JSC in the above case in extenso because it completely addresses the concerns of the 1st – 4th respondents in the instant appeal. As can be seen from the extant decision of this Court, from the extant decision of this Court, not even the provisions of the Constitution

voids (sic) the limitation period in Chieftaincy matter. The argument of the 1st – 4th respondents in this issue is, as can be seen, of no moment.
Having debunked all the road blocks set up by the 1st – 4th respondents against the applicability of the Public Officers Protection Act to this proceeding, it remains for me to state clearly that the limitation law was lawfully and properly raised before this Court by the appellant. The sum total of all I have endeavoured to say above is that the suit of the 1st – 4th respondents before the trial High Court was statute-barred and had robbed the trial Court of the jurisdiction to entertain the matter. In the same vein, the Lower Court had no jurisdiction to hear and determine an appeal arising from a judgment generated from the High Court which had no jurisdiction to entertain same. Accordingly, both the judgment of the High Court of Kogi State delivered on 3rd April, 2006 and that of the Court below delivered on 12th January, 2009 are hereby set aside. The appeal is hereby allowed. Consequently, the suit of the 1st – 4th respondents at the trial High Court of Kogi State is hereby struck

out for want of jurisdiction. Having struck out the suit, there remains nothing to be said in respect of the other issues in this appeal including the cross appeal which is also struck out for the same reason. I make no order as to costs.”
The Appellants instituted the instant action on 28/9/2012, having regard to the writ of summons and statement of claim. The only meaningful averment in relation to the Respondents, are in respect of all actions taken by them under or pursuant to a constitution made on 10/2/2011, which actions the Appellants say do not bind them and will never be accepted by them. No matter the resort made to some other fluid circumstances by the Appellants, it is obvious that their perceived cause of action as it relates to the Respondents is in respect of the said constitution and being public officers, they are undoubtedly entitled to claim the immunity from actions they are alleged to have done in respect of the constitution from the date it was made and not from the date the Appellants procured a copy of it.
Having regard to all that has been said before now, I am of the considered view that the lower Court was eminently

right in its finding to the effect that the right of action the Appellants have against the Respondents in respect of a constitution averred to have been made on 10/2/2011, is statute barred. The Respondent did not appeal against the finding of the lower Court not applying the Public Officers Limitation Act, to him. He also did not appeal against the finding of the lower Court that the Appellants case was not statute barred, as it relates to him. I will therefore not consider the aspect of the appeal as it relates to the said Respondent.
Flowing from all that has been said, is that Appellants’ issue 1 is resolved against them.

The Appellants as it can be seen from the submissions, that have been highlighted hereinbefore, dealt extensively on the issues of cause of action and locus standi. The position of the Respondent, is to the effect that the Appellants have no locus standi and that it is not legally possible for the Appellants who have no locus standi to have any cause of action in the instant case. This is because, locus standi and cause of action are interwoven even though they are separate.
There is no doubt that the position of

the law as expressed by the Respondent is correct at least as it relates to private actions. In this regard see the case of OWODUNNI V. REGD TRUSTEES OF CCC (2000) LPELR-2852(SC) wherein the Supreme Court per Ogundare, JSC; dwelled extensively on the issue of locus standi particularly under public law and private law. Re-produced below are portions of the judgment that I consider to be very relevant for the resolution of the issue of locus standi and cause of action of the Appellants in the instant case. His lordship stated thus: –
“The term ‘locus standi’ (or standing) denotes the legal capacity to institute proceedings in a Court of law. Standing to sue is not dependent on the success or merit of a case, it is a condition precedent to a determination on the merits. It follows therefore, that if a plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merits; his case must be struck out as being incompetent. At common law, the position is that, in the realm of public right, for a person to invoke judicial power to determine the constitutionality of legislative or execution action, he

must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself, and which interest or injury is over and above that of the general public. In other words, the plaintiff or claimant must show that he has some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. The question whether there is such a justiciable interest of sufferance of injury depends on the facts and circumstances of each case – See generally, the various judgments delivered by their Lordships of this Court in Senator Adesanya v. President of the Federal Republic of Nigeria & Anor (supra) …
In Oloriode v. Oyebi (1984) 1 SCNLR 390 at 400, Irikefe JSC., (as he then was) declared:
“A party prosecuting an action would have locus standi where the reliefs claimed would confer some benefits on such a party.”
This is clearly the position in private law. A case in point is Amusa Momoh v. Jimoh Olotu (supra) where, in a chieftaincy matter, the plaintiff had pleaded, without more, in

paragraph 1 of his statement of claim that he was a member of the ruling house affected by the dispute. Sir Ademola CJN, delivering the judgment of this Court declared:
“In regard to paragraph 1 of the statement of claim and the point raised that the plaintiff has no locus standi in the matter, the learned trial Judge ruled that as this paragraph has not been denied, the plaintiff cannot be said to have no interest. Now, what is the averment in paragraph 1. The plaintiff says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family. Has he not got to state that he has an interest in the chieftaincy Surely not every member of a chieftaincy family as such has interest in the chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his statement of claim how his interest in the chieftaincy title arose. It is difficult to say on the pleadings filed that the plaintiff has any locus standi in the matter.”
The

position appears to be that in private law, the question of locus standi is merged in the issue of cause of action. For instance, a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of the contract as he will simply not have a locus standi to sue the defendant on the contract. It is on this basis one can explain the decision in Momoh v. Olotu. What cause of action has a member of a ruling house who has no interest in a chieftaincy title against the successful candidate. None that I can imagine. It is on the basis of the reasoning in Momoh v. Olotu that one can readily explain the decisions in Odeneye v. Efunuga (supra) and cases cited therein and that is that “a party must show clearly that he has a right to protect and that his coming to Court is to seek remedy so that the right will not be violated” – Per Belgore JSC in Odeneye v. Efunuga at page 639. Belgore JSC added at page 640 and I agree with him …
Our law reports are replete with authorities that show that in chieftaincy cases, all a plaintiff is required to do is to show in his statement of claim his interest and his entitlement to the

chieftaincy title. I may add that the same principle applies to similar cases such as the one presently on hand. Thomas v. Olufosoye (supra) falls in this category as well.
… Olawoyin v. Attorney-General of Nigeria (supra) is a case in the realm of public law. They brought proceedings to declare unconstitutional, certain provisions of the Children and Young Persons Law,1958 of Northern Nigeria. On appeal to the Federal Supreme Court, the Court held that only a person who is in imminent danger of coming into conflict with a Law, or whose normal business or other activities have been directly interfered with by or under that Law, that has sufficient interest to sustain a claim that that Law is unconstitutional. Unsworth FJ delivered the judgment of the Court, laid down the following test:
“Now did the appellant in the High Court show that he had a sufficient interest to enable him to apply for a declaratory judgment in accordance with the principles laid down in the case of the Guaranty Trust Co. of New York v. Hannay (supra). The appellant did not in his claim, allege any interest but his counsel said that the evidence would be that the appellant

had children whom he wished to educate politically. There was no suggestion that the appellant was in imminent danger of coming into conflict with the law or that there had been any real or direct interference with his normal business or other activities. In my view, the appellant failed to show that he had a sufficient interest to sustain a claim. It seems to me that to hold that there was an interest here would amount to saying that a private individual obtains an interest by the mere enactment of a law with which he may in the future come in conflict; and I would not support such a proposition.”
As O. failed to allege or establish any such interest, his case was held to be rightly dismissed. The Court applied the “interest” and “injury” test in denying of locus standi in the case.
The same test was applied by the Court in Gamioba & Ors. v. EseziII & Ors. (1961) 2 SCNLR 237, (1961) ANLR 584 608,613 where Brett FJ. as he then was, said:
“There is a further test to be applied in a case such as this one. It is always necessary, where the plaintiff claims a declaration that a law is invalid, that the Court should be satisfied that the

plaintiff’s legal rights have been or are in imminent danger of being invaded in consequence of the law. We dealt with this point at length in Olawoyin v. Attorney-General Northern Region, (1960) FSC 290; (1961) All NLR 269, and it will be enough to say here that since the validity of a law is a matter of concern to the public at large, the Court has a duty to form its own judgment as to the plaintiff’s locus standi, and should not assume it merely because the defendant admits it or does not dispute it. The plaintiff’s locus standi in the present case has not yet been disclosed, and if he has none, his claim must be dismissed on that ground, and it will be unnecessary to decide the question involved in the declaration he claims. For this reason also, it is not yet clear that the question set out in counsel’s application arises.”
In all the above cases, all that was claimed were declaratory reliefs and injunctions. In no one was any relief being specifically claimed by the plaintiff or himself. This did not prevent the Court ascribing locus standi to those of them who showed sufficient interest in the subject-matter of the dispute. Locus standi was not

denied to the plaintiffs in Thomas v. Olufosoye and Maradesa v. Governor of Oyo State (supra) merely because they did not claim any relief for themselves but because they did not show sufficient interest in the subject-matter of the disputes as to entitle them to sue. …”
In the judgment of Ogundare, JSC; under reference, his lordship not only dwelled on how the issue of locus standi as decided in the case of Adesanya v. President of the Federal Republic of Nigeria (supra) should be appreciated, but most particularly stated that it was a wrong notion or idea, that locus standi was donated to the generality of persons by Section 6(6)(b) of the 1979 Constitution (re-enacted as Section 6(6) (b) of the 1999 Constitution). See also the case of EMEZI V. OSUAGWU (2005) LPELR-1130(SC).
I am of the considered view that one cannot run away from the fact that Law No. 6 of 2006, inasmuch as it relates to traditional rulers; how they can ascend the throne of Eze; and the communities over which they have authority, is basically an enactment relating to chieftaincy matters. This much is clear from the general overview of Law No. 6 of 2006, that has been given

hereinbefore. It is clear from the said Law, that it is not every autonomous community that has a town union that can properly discharge the duties vested in a town union by the said law. The town union of an autonomous community that can properly engage in the making of a constitution and a fortiori challenge the validity of a constitution by Law No. 6 of 2006, in my considered view, must be a registered town union. Even though some of the Appellants have described themselves as officers of the Ihim town union, there is no averment in the statement of claim that Ihim town union is a registered town union or that the change from Umuihum Development Union, is registered as required by law. Aside, from the position of the law that it is only a registered town union that can have a registered constitution; in no part of the statement of claim did the Appellants disclose what role the Respondent and/or Respondents, have to play in the making of a registered constitution; or played in the making of the constitution made on 10/2/2011, which they say all actions taken thereunder do not bind them and will never be accepted by them. They have no claim before the lower

Court that specifically relate to them or any of them.
I am of the considered view that applying either the“ relief and benefit test” and or “interest” and injury test”, the Appellants clearly have not disclosed their locus standi to sue the Respondent and Respondents respectively, in respect of the constitution of Ihim autonomous community. The Appellants who having regard to the provision of Section 28 of Law No. 6 of 2006, could not sue the Respondent as Eze; and who also have no right of action against the Respondents, for actions taken under and pursuant to the constitution made on 10/2/2011, in my considered view simply contrived the instant suit by challenging the constitution of their autonomous community losing sight of the fact that the Law in respect of their perceived cause of action, did not charge the Respondent or Respondents with any duty in the making of the constitution for Ihim autonomous community. The Appellants would also appear to have lost sight of the fact that the Law applicable to their grouse with the constitution of their autonomous community, has provided for the procedure as to how they can ventilate this,

or of having the constitution amended in order to have a constitution which they will find acceptable. It is totally incomprehensible how the Appellants can say that they have the locus standi to sue the Respondent and Respondents respectively, in relation to a constitution which there is no suggestion in the statement of claim that the aforementioned parties played any part or role in its making. This is aside from the position of the law that where an enactment provides for administrative remedies, the jurisdiction of the Court is put in jeopardy where the same have not been exhausted before rushing to Court. See the cases ofADEJOLA V. BOLARINWA (2011) LPELR-4435(CA) wherein this Court stated thus: –
“The matter of compliance with the provisions of the Chiefs Law is a precondition to the institution of the action, in the absence of which, the Court would be deprived of the jurisdiction or competence to hear the case. Being an issue of jurisdiction, it can be raised at any point. The case of Adesola v. Abidoye (1999) 14 NWLR (pt 637) 28 is on all fours with the instant case.”
Suffice it to say that the position of this Court in the case

cited above in my considered view is not only consistent with the position of the Supreme Court in the cases of ARIBISALA V. OGUNYEMI (2005) LPELR-549(SC) and OWOSENI V. FALOYE (2005) LPELR-2856 (SC), but is equally reinforced by the decision in the cases of KAYILI V. YILBUK (2015) LPELR-24323 (SC) and MAGBAGBEOLA V. AKINTOLA (2018) LPELR.
Flowing from all that has been said, is that as I am at one with the lower Court that the Appellants failed to disclose their locus standi to sue the Respondent and Respondents respectively, over or in respect of the constitution of their autonomous community, in respect of which all or any of the Respondents has not been shown to have played any role. I equally find the Appellants not to have disclosed a cause of action against all the Respondents in their statement of claim.
Appellants’ issues 2 and 3 are accordingly resolved against them.

APPELLANTS’ ISSUE 6: WHETHER THE TRIAL COURT WAS RIGHT IN DISMISSING THE SUIT?
Dwelling on this issue, the Appellants submitted to the effect that it is settled law that the consequence(s) of the ‘dismissal of a suit’ and ‘striking out of a suit’, are not

the same. That in dismissal, the right of the plaintiffs to re-litigate on the subject matter is permanently extinguished unlike striking out. It is the stance of the Appellants that the lower Court ought to have found their action maintainable against the Respondent. This is against the backdrop of the findings that the suit was not barred under the Public Officers Protection Act; Law No. 6 of 2006; and that it is in respect of “the validity or otherwise of the alleged Constitution”. This position is based on the correctness of the position of the lower Court that the Respondents are protected under the Public Officers Protection Act (but which the Appellants do not concede). It is the stance of the Appellants that the order of dismissal of their case is a travesty of justice. This is because the dismissal of the matter, if not challenged on appeal would bar them (Appellants) from re-litigating on the subject matter anytime thereafter. That it is a travesty of justice as it robs them (Appellants) of their constitutionally guaranteed right of access to the Court on the subject matter to ventilate their grievance. The Appellants submitted that the lower

Court by agreeing that the suit raised the issue of fraud or forgery which is an important matter of public policy, should have assumed jurisdiction and heard the matter instead of dismissing it. This Court was urged to set aside the order dismissing the suit and give life back to it.

The stance of the Respondent on this issue, is diametrically opposed to that of the Appellants. The Respondent submitted that this Court should hold that the consequence of a suit being filled outside the time provided by statute is dismissal and not striking out. That striking out allows a litigant to have a second try while dismissal annihilates the right of action on the same subject matter. That when an action is statute barred, such action does not have any life left in it for a second coming or resurrection of any sort. The Respondent stated that though the position of the law in this regard would appear to be harsh, but that the law must be upheld by the Courts. It is the position of the Respondent that the action of the Appellants before the lower Court was caught up in two statutory fronts, namely Law No. 6 of 2006, and Public Officers Protection Act. Reference was

made to Section 28 of Law No. 6 of 2006 and Section 2(A) of Public Officers Protection Act.

In their reply brief of argument, the Appellants submitted to the effect that Section 28 of Law No. 6 of 2006, was not applicable to their case. They made the point that they were not under a duty to have recourse to the provision of Section 28 of Law No. 6 of 2006. This is because, they were not complaining of a breach of the rule of fair hearing. They cited the case of Okeahialam v. Nwamara (2004) 3 WRN 1, and re-produced what the Supreme Court, per Ayoola, JSC; said in the case.

I will start the resolution of this issue, by first saying that it is a complete misapprehension of the ruling of the lower Court by the Respondent for him to have cited Section 28 of Law No. 6 of 2006, as one of the two “statutory fronts” that caught the action of the Appellants. The lower Court specifically found that Section 28 of Law No. 6 of 2006, was inapplicable to the Appellants’ case. The Respondent has in no manner whatsoever appealed against this finding which was specifically against him. It is therefore incomprehensible how the Respondent can rely on a

specific finding of the lower Court that was against him, in arguing to the effect that the legal consequence of the finding that the Appellants’ action against the Respondents was statute barred, ought to have been extended to him and thereby justifying the dismissal of the Appellants’ case against all the Respondents on that ground. I can only say that the stance of the Respondent in this regard overlooks the fact that though he and the Respondents are the Appellants’ adversaries in the instant case, they are still of separate identities, Hence, any order made in respect of the Respondents that does not affect the case as a whole, cannot have application across-the-board. The Respondents are equal but separate, as it were. I must also say that it is a complete misapprehension of the Okeahialam case for the Appellants to argue that their case which was found to challenge to the validity of the constitution of their autonomous community, was not one in respect of which they ought to have had recourse to administrative procedure stipulated in Law No. 6 of 2006. This is because the case in question relates to the “illegality of the

recognition of a person as a traditional ruler and the steps leading to the recognition”. The Appellants it would appear have forgotten that they never appealed against the finding of the lower Court that their case does not turn on the Ezeship or autonomous communities contest. I therefore do not see the relevance of the case to the Appellants’ action or as authority for the position I have earlier expressed to the effect, that the Appellants ought to have availed themselves of remedies provided in Law No. 6 of 2006, regarding the constitution of an autonomous community that is perceived not to have been made in compliance with the provisions of the aforementioned Law.

It would appear that there are cases deciding to the effect that where a plaintiff is found to lack locus standi, the action is to be dismissed. See in this regard the case of GAMIOBA V. ESEZI II (1961) All NLR 584 wherein the Supreme Court stated thus: –
“We dealt with this point at length in Olawoyin v. Attorney-General Northern Region, (FSC.290/1960), (1961) All N.L.R. 269, and it will be enough to say here that since the validity of a law is a matter of concern

to the public at large the Court has a duty to form its own judgment as to the plaintiff’s locus standi, and should not assume it merely because the defendant admits it or does not dispute it. The plaintiff’s locus standi in the present case has not yet been disclosed, and if he has none, his claim must be dismissed on that ground, and it will be unnecessary to decide the question involved in the declaration he claims. For this reason also it is not yet clear that the question set out in counsel’s application arises.”
However, I cannot but say that in recent times, the position of the law is that a case in which the plaintiff has disclosed no locus standi, is always struck out. In the same vein, it is clear that where a statement of claim in an action is found to be lacking in a cause of action (in contradistinction to lacking in a reasonable cause of action), the statement of claim, in such a case, is to be struck out, and the action dismissed. In this regard see the case of BARBUS & CO. (NIG) LTD V. OKAFOR-UDEJI (supra) wherein the Supreme Court stated: -“Corollary, it is only where the statement of claim discloses no cause of action

and if the Court is satisfied that no amendment, however unserious will cure the defect that the statement of claim will be struck out and the action dismissed. Where no question as to the civil rights and obligations of the Plaintiff is raised in the statement of claim for determination, the statement of claim will be struck out and the action dismissed.”
In agreeing with the finding of the lower Court that the Appellants have no locus standi to have brought the instant action in respect of the validity of the constitution of their autonomous community, against all the Respondents, I brought to the fore, the fact that the Respondent and Respondents respectively, were not disclosed in the statement of claim to have done any act in respect of the making of the said constitution. This is against the backdrop of Law No. 6 of 2006, which glaringly shows that the Respondent and the Respondents respectively, have no role to play in the making of the constitution. I do not see any meaningful amendment that can be made to the action to cure these defects. I am of the considered view that if the lower Court had, had the benefit of any case decided along the

line of the case of BARBUS & CO. (NIG) LTD V. OKAFOR-UDEJI (supra), it would have specifically struck out the Appellants’ statement of claim which it (lower Court) rightly found to be lacking in a cause of action, and thereafter to have dismissed the Appellants’ suit. However, the fact that the lower Court did not do this, in my considered view have in no way imparted adversely on or derogated from its decision dismissing the Appellants’ action for lacking in cause of action. Lack of cause of action in the circumstances of this case, is a defect that applied to both the Respondent and Respondents. This is unlike protection granted under the Public Officers Protection Act. The lower Court in my considered view was therefore right to have dismissed the Appellants’ action as failure of the action of the said Appellants to disclose a cause of action, afflicts the entire case and the parties therein; unlike their action against the Respondents being statute barred. This is so irrespective of whether the proper order the lower Court should have made is that of striking out in respect of its findings on locus standi and the instant action being

statute barred. I must however add that the Appellants are in my considered view on firm grounds that the finding by the lower Court that their action was statute barred could only have resulted in an order of dismissal against the Respondents only, as it is the right of action the Appellants have against them, that can no longer be enforced having regard to the said finding.
Flowing from all that has been said is that the issue under consideration is resolved against the Appellants.

In the final analysis, the instant appeal is unmeritorious given the resolution of all the issues formulated by the Appellants for its determination, against them. The appeal fails. The ruling of the lower Court appealed against, is accordingly affirmed.
The lower Court made no order as to costs. I too make none.

ITA GEORGE MBABA, J.C.A.: I had the advantage of reading the draft of the judgment just delivered by my learned brother, A.O. Lokulo-Sodipe. JCA, and I agree with his reasoning and conclusions, which I consider well articulated and comprehensively, reached, to the effect that the appeal has no merit.
I too dismiss the Appeal for

lacking in merit and abide by the consequential orders in the lead judgment.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having read in advance, the judgment just delivered by my learned Brother Lokulo-Sodipe, JCA, I entirely agree with him that this appeal is unmeritorious and qualifies to be and is hereby dismissed.
I affirm the Ruling of the Lower Court; and abide by the consequential order as to cost, by making none.

Appearances:

Uche Wisdom A. Durueke for 1st – 3rd Appellants. For Appellant(s)

Alex N.N. Williams for 1st Respondent.

2nd – 4th Respondents not in Court and not represented by counsel. For Respondent(s)